OPR Ch. 1.3: Evaluative Diversity and the Problem of Indeterminacy

Summary
Gaus begins this section by describing a Kantian proposal for how to reconcile the freedom and equality of persons with the authority of morality. First, we bracket our private ends-those things that divide us. Second, we focus on those common considerations that can serve as the basis for justifications of moral requirements. Rawls famously formalized this two-step procedure with the veil of ignorance and the idea of a list of primary goods essential to the exercise and development of the two moral powers. But because the Kant-Rawls solution involves bracketing everything that divides us–most importantly, our different comprehensive doctrines–there is no real evaluative diversity in the original position. The original position, as many critics have pointed out, is not a problem of collective choice, but a problem of individual choice since there is only a single perspective that remains after the veil of ignorance has been imposed. For Gaus, this creates two big problems.

First, how do we know that we have sufficient reason to follow the rules of morality if those rules have been determined only by abstracting away from those values (i.e. our comprehensive doctrines) that we care deeply about? Merely showing that we can get a set of justified moral rules by bracketing what divides us doesn’t establish that we have good reasons to follow these rules when we consider our full set of reasons. This is the problem of stability. Gaus argues the later Rawls recognized this problem, and this explains Rawls’s claim in Political Liberalism that the rules generating by the freestanding argument in the original position provide only a pro tanto justification–the full justification of those rules is not achieved until each person sees that he or she has reasons from within his or her wider doctrine to endorse the rules. When everyone achieves this reconciliation, we famously have an overlapping consensus on a public conception of justice.

But Rawls’s solution appears to ignore (or at least downplay) a second problem: indeterminacy. Rawls gets a unique set of principles out of the original position by eliminating all the evaluative diversity from that choice procedure. But once we let the evaluative diversity back in, either via the overlapping consensus, or in some other way, Gaus argues we are bound to get quite a bit of indeterminacy regarding the publicly justifiable rules. There just isn’t enough common ground, Gaus believes, to derive anything like a uniquely justified list of moral rules. Rawls saw indeterminacy as a potentially fatal problem, but Gaus encourages us to embrace it as the inevitable result of respecting evaluative diversity while searching for publicly justifiable moral rules. If we consider what could be justified to members of the public, Gaus suggests that what we will get is a non-empty and non-singular set of optimal eligible proposals, and of course there will be disagreement regarding the ranking of these different proposals.

So how do we solve this problem of indeterminacy? Here is where Hume provides a helping hand. Instead of following Kant or Rawls and looking for ways to exclude evaluative diversity and thereby avoid indeterminacy, Gaus urges us to draw on the resources of a more Humean approach to social morality. In particular, Gaus says we can draw on the idea that moral norms evolve and become stable as a solution to the large-scale coordination problem of how to live together cooperatively in a way that can benefit everyone. Without this kind of convergence–for example, convergence on rules over property rights and how they are to be respected–social life would be filled with costly and inefficient conflicts. So even if idealized members of the public will not converge on a unique set of moral rules due to evaluative diversity, real people will inevitably do so as a result of evolutionary pressures to reach an equilibrium. This evolutionary perspective also helps to dissolve the puzzle of mutual authority mentioned in the previous sections. Social morality is a form of decentralized social authority between many people, and not some puzzling form of mutual authority between two agents.

Gaus’s brilliant solution to the puzzle of how morality’s authority can be reconciled with our freedom and equality is thus a reconciliation of Kantian and Humean perspectives. A publicly justified morality is a set of moral rules that is both: (1) an equilibrium solution that has evolved to help individuals solve their large-scale coordination problem of social cooperation, and (2) is among the members of the optimal eligible set that could be justified to idealized members of the public. As Gaus puts it, without the evolutionary story, the Kantian approach is hopelessly controversial or indeterminate. But without the emphasis on public justification, evolved moral rules are merely authoritarian.

Questions
Obviously there is a lot going on here since this section effectively summarizes the main argument of the whole book. Here are just a couple of questions/comments:

1. Suppose Albert looks at the moral rules that emerge from the original position (or some similar device) and correctly decides that these rules cannot be justified (or their deliberative priority cannot be justified) within his own comprehensive doctrine. Gaus seems to believe this is a fatal objection to that set of rules, at least with regard to their authority over Albert. But don’t we need to know more about Albert’s doctrine, in particular about its normative content, before we can reach this conclusion? After all, what if Albert’s doctrine is racist, or is deeply repugnant in some other way? Surely the fact that racists cannot reconcile their comprehensive doctrines with a freestanding justification is no reason to doubt that the freestanding justification may nevertheless be authoritative with regard to that person? Put another way, don’t we need to restrict the constituency whose objections might generate genuine stability problems to some normatively idealized set of people? And if we do this, as I think we have to in order to avoid wildly counter-intuitive results, this is another kind of bracketing strategy. I’m not sure whether or not this is consistent with Gaus’s approach, though his rejection of the expansive view in the previous section may indicate it is inconsistent. I do think this kind of normative bracketing strategy may also help to reduce, though not eliminate, the amount of indeterminacy we find amongst members of the public.

2. Gaus supposes that there will be a fair amount of indeterminacy regarding what can be justified to members of the public. But now consider the Humean side of things–there is surely also a fair amount of indeterminacy regarding which set of rules can evolve to serve as a stable equilibrium for social cooperation–which particular set of rules we end up with is (as Gaus will argue) path-dependent. So we have two indeterminate sets of moral rules: the one generated by consulting the members of the public (the optimal eligible set), and the one that can meet evolutionary pressures (call it the evolutionarily eligible set). Here’s an obvious question: what if these sets don’t overlap at all? What if none of the moralities in the optimal eligible set can be found in the evolutionarily eligible set? Maybe this seems very unlikely, but it all depends on how demanding the test of public justification turns out to be. Suppose, for example, that there is such evaluative diversity among members of the public that the only rules that can be justified to all of them will be very minimal rules prohibiting certain kinds of killing and harm. Nothing more complex can be justified to everyone. But suppose it turns out that only much more complex moralities are evolutionarily stable–e.g. stable moralities must include all kinds of rules about sex, greetings, and property–but these sort of complex rules are far too controversial to ever be acceptable to all members of the public. Now it looks like we face a bad choice between unjustified but stable moral authority, or unstable but justified social life. One way to avoid this result might be to stipulate that if social cooperation is not possible without a moral rule to govern behaviour type X, then this provides all members of the public with sufficient reason to prefer any moral rule rather than no moral rule regarding X. If the need for social cooperation always provides decisive reasons in this way, then we ensure there will always be overlap between our two sets. But this kind of stipulation comes with a big price tag, namely, it seems like an extreme form of the bracketing strategy that Gaus disapproves of: it assumes that individuals share one overriding aim, social cooperation, and achieving this aim is always sufficient to override a person’s other values or commitments. Morality authority starts to look pretty authoritarian if we make this stipulation.

7 Responses to OPR Ch. 1.3: Evaluative Diversity and the Problem of Indeterminacy

Jonathan, how do you understand the relationship between ‘pro tanto’ and ‘full justification’, and is this different than the way Jerry understands it?

I ask because I find the problem of stability or robustness puzzling. I interpreted pp.38-42 like this, which may be wrong, but I hope usefully so: At stage 1, we identify principles based on the reasons reasonable persons share. At stage 2, I, as a reasonable person, check to see whether these principles, which are justified considering only a subset of the reasons I accept (the shared or public ones), are also justified based on the total set of reasons I accept (public + nonpublic), and if not, I refuse to endorse them (the principles). However, if all along I knew that I was going to act on whatever I considered to be the total balance of reasons, in what sense do I have a commitment to political liberalism and public reason or public justification? On this model, the first stage argument simply points out what would be just if the only reasons we believed were the reasons we share. But of course each of us also believes other, non-shared reasons. Why think political justice and the various comprehensive visions of justice will line up? The whole problem was that visions of justice based on rival comprehensive doctrines conflict. Even if we limit ourselves to some narrow range of reasonable comprehensive doctrines, they will each presumably come to some different conclusions about justice, each based on its total balance of reasons. They will not ignore shared, public reasons, since by definition these are shared and acknowledged to be important, but the problem is that such reasons have already been taken into account in the various doctrines’ total calculus of reasons.

An alternate model would be this. Faced with the conflict between rival doctrines each of which suggests a different comprehensive vision of justice, we agree that we need a political conception of justice, modeled via the original position, perhaps. Each doctrine has its own reasons for thinking that finding an adequate political conception would be a good thing, all things considered, given the fact of reasonable pluralism. However, once the first stage argument identifies principles of justice, each of the doctrines must ask itself whether on balance the good of a having reasonably-shareable principles of justice is sufficient to outweigh the cost (in terms of true justice, variously construed). Is that how you see things?

I realize I’ve jumped ahead from moral authority to justice… hopefully the issue is still clear enough.

As for (1), I’m inclined to think that Jerry’s moderate form of idealization developed later in the book will bar a number of “repugnant” reasons from entering into public justification because they will be based on poor reasoning or information. However, since Jerry doesn’t want to radically idealize, like say Rawls or (in my view), you, he will be open to these worries. Having talked to him about this issue in the past, I think he will often bite the bullet and hold that people with belief-value sets we find repugnant may indeed have reason to reject certain moral principles. In other cases, I think his views about the reasons of MoPs will be rooted in Jerry’s understanding of a normal individual’s moral psychology. So some of the work in ruling out these ugly cases will be empirical. I think he speaks to this worry with respect to sociopathy in Chapter 4.

As for (2), I think Jerry acknowledges the possibility that the two eligible sets (let’s call them the normative and the empirical sets) won’t overlap. In those cases, no norm will cover the question that is at issue and members of the public will remain in a state of nature vis-a-vis one another. But the possibility of this happening in a particular case is manageable. The bigger worry is whether the lack of overlap between the normative and empirical eligible sets will be politically and socially debilitating. Perhaps evaluative diversity generates a null set of eligible proposals! I think Jerry thinks the whole book is in a way an attempt to show why the set isn’t empty and that the social contract tradition as a whole can be read as grappling for an answer (this is quite clear in Rawls, for instance). For Jerry, the answer requires appealing to moral psychology, evolutionary game theory, economics and the like.

My point is just that you have asked an “ur-question” about the book: Jerry is eager to look into the world for an answer for these questions rather than to rely more heavily on pure political theory.

By the way, I often remark in this context that Jerry has moved from a kind of neo-Kantian liberalism to a neo-Hegelian liberalism. History is (sort of) normative!

I’m sorry to be late to the discussion, but I wanted to add a couple quick thoughts, which maybe are just a way to flag some questions going forward:

1. What moral ideas inform the construction of the set of “optimal eligible proposals” (OEPs)? As I understand the argument so far, OEPs are principles of social morality that all Members of the Public (MPs) can accept, given their diversity of evaluative standards. The problem, then, is to select a rule (or set of rules) from the set of OEPs. But how (or in reference to what ideas, values, etc.) do we define that set? I take Jon’s question about racist doctrines to be pressing this question (or something like it). If racist doctrines don’t count in excluding rules from the set of OEPs, why not? What moral resources does Jerry’s theory draw upon to exclude them? So far, the conceptions of freedom and equality seem fairly thin, which raises a concern about trying to get (much?) more out of the theory than is going in — though of course it’s still very early in the book.

Still, and continuing with the example of racist views, it seems like we face a choice between two conclusions: (1) no social morality that is inconsistent with racist views is publicly justifiable, or (2) a social morality inconsistent with racist views is justifiable, but not to those with racist views, for whom social morality is therefore authoritarian (which is what Kevin seems to suggest above). Given the way Jerry has set up the project, it seems early to preclude the possibility of (1), which leads to skepticism about social morality. We need an argument for thinking that the set of OEPs isn’t empty (and, again, I know it’s early — there is a lot more on the way). As for (2), I suppose one response is: So what if racists can’t accept a non-racist social morality? If they see an otherwise publicly justifiable social morality as authoritarian, what’s so bad about authoritarianism (understood in this very particular sense of the word)?

2. I wonder how the ambitions of Jerry’s book differ from, say, those of Rawls’s in Political Liberalism. On one hand, Jerry’s aim is to provide an account of social morality, which is broader than the political domain, at least as Rawls defines it in PL. That makes Jerry’s book more ambitious in some ways. On the other hand, Jerry’s conclusions may seem more modest, since he thinks social morality is characterized by widespread indeterminacy. The question becomes: how much indeterminacy? And how are the boundaries of that indeterminacy justified? Rawls provided some answers to those questions (e.g., by narrowing his focus to the political domain, by constraining the scope of public reason, and by acknowledging competing reasonable political conceptions), but his discussions of them were often oblique, at best. I think Jerry is right to put them front and center.

If I may, I would like to add a brief comment and question. (Since most of you don’t know me: My work in political science is mostly empirical but I have been working on a critical paper on Gaus’ normative treatment of decision rules.)

I think that speaking of the convergence between “real people” (Jonathan) or of “empirical” eligible sets and Gaus’ “look into the real world” (Kevin) may be somewhat problematic (at least later on). As I understand it (so far), the Humean part of Gaus’ argument is still very much an idealized account. It seems to me that the path-dependent “evolution” of social morality in the REAL world is likely to be heavily influenced by various types of power, transaction costs, and other factors that do not seem to figure prominently in Gaus’ analysis. (I have read all available papers related to the book, but not yet the book itself, except for chapter 1, so I might be wrong.)

If my reading is along the right lines, it might be useful to distinguish between “positive” (as in positive political theory) and “empirical”. The Humean part of Gaus’ argument seems to be (in part) positive, but not (necessarily) empirical in the sense of being based on the most relevant facts about the real world. This distinction may matter quite a bit when it comes to the normative content of path-dependent equilibria. Does this make sense?

Andrew: That’s a really deep and difficult question. I think the first model you describe is roughly how Jerry understands the problem of stability. As I understand Jerry’s view, the principles that can be justified in the first stage, where we consider only our shared reasons, can always be overridden at the second stage if those principles cannot be justified within a reasonable person’s wider comprehensive doctrine. I think you and I share a broadly similar worry that this way of conceptualizing the stability problem seems to grant too much justificatory weight to people’s comprehensive doctrines, especially if those doctrines have not been subject to some sort of normative pre-screening (see Micah’s worry).

My own view of the best way to think about stability and the overlapping consensus is (shameless book-plug warning) set out in chapters 5 and 6 of my Liberalism Without Perfection. There I argue that political liberals are better off conceptualizing the overlapping consensus as the first stage, not the second stage, of the justificatory project. We ask ourselves what normative commitments liberal citizens must share in a well-ordered society, and once we work out the answer to that question, we use those normative commitments as the basis from which public reasoning about justice can begin. This method avoids some of the worries I have about Jerry’s conceptualization of the stability problem, though my approach also comes with costs of its own that Kevin points to, namely, a lot of normative assumptions get built in at the outset. So I think my approach differs from the second one you outline, since in your second model the overlapping consensus still seems to represent a second stage in the justificatory picture where reasonable people ask themselves whether the benefits of the freestanding conception outweigh the costs.

Kevin: On the first point, from what you say it sounds like Jerry’s view is actually more nuanced than the sharp contrast between the expansive and restrictive conceptions allows. Maybe it’s better to conceptualize it as a spectrum: on one end we have very normatively front-loaded conceptions of the justificatory constituency, and at the other end we have conceptions with little or no normative content, and then there’s a range of options in between.

Micah: I’m in agreement with both of your points (surprise!).

Steffen: I think you make a very good point, though to be fair to Jerry, I think we’ll need to wait and see what he has to say about the influence of pernicious factors on the evolution of moral norms in the next few chapters before reaching any judgements. Remember too that regardless of how a set of moral rules may have evolved, it cannot qualify as a publicly justified social morality unless it also meets the condition of being justifiable to the idealized members of the public, and this is a fairly significant normative constraint that may mitigate some of the worries about the influence of pernicious variables.

Here are some quick thoughts that I had upon reading this chapter. Both concern Gaus’s discussion of Rawls’s attempt to overcome the ‘problem of indeterminacy’, namely, the original position device.

First, the subject matter for which the parties in the original position are selecting principles, the ‘basic structure of society’, is clearly more limited in its scope than the systems of ‘social morality’ with which Gaus is concerned. (This difference, among others, is noted by Micah Schwartzman in his comment.) It seems plausible that the limited scope of Rawls’s subject matter would render the problem of selecting principles somewhat more tractable (although, obviously, it would not by itself necessarily be sufficient to overcome the problem). Moreover, a Rawlsian political liberal likely would hold that a variety of different systems of ‘social morality’ (different members of the set of ‘optimal eligible proposals’) might be compatible with the political conception of ‘justice as fairness’.

I suspect that Gauss would reject the latter claim. If so, I would be curious to know if his reason(s) for rejecting Rawls’s limited scope for principles of political justice resemble those advanced by G. A. Cohen. Perhaps this will become clearer later in the book.

Second, I think that Rawls acknowledges the problem of indeterminacy with respect to political conceptions of justice, at least to some extent. In his final writings on political liberalism, Rawls explicitly acknowledges that there exist a family of different ‘reasonable’ liberal conceptions of justice. All members of this family satisfy three criteria (roughly, they include a set of basic liberties; assign to those liberties a ‘special priority’; and ensure for all citizens adequate primary goods to make effective use of their basic liberties over the course of their lives) and satisfy the ‘criterion of reciprocity’ (see The Law of Peoples, pp. 14, 141). Any reasonable conception of justice, if formulated as a political conception (if formulated in a way that satisfies what can be called the ‘freestanding condition’ and the ‘basic structure restriction’) is legitimate (it satisfy the ‘liberal principle of legitimacy’). So the set of reasonable political conceptions of justice, we might say, comprise Rawls’s set of ‘optimal eligible proposals’ for organizing the basic structures of well-ordered societies.

Of course, Rawls thinks that ‘justice as fairness’ is the most reasonable political conception of justice, and he argues that this can be shown via the original position device. But this is quite different from maintaining that a particular conception of justice (such as justice as fairness) is the only reasonable or justified conception. That clearly is not part of Rawls’s final account of political liberalism. Moreover, presumably Gaus also has a view about which member of the set of ‘optimal eligible proposals’ for social morality is the most justified one. (But perhaps not; perhaps, like Habermas, he thinks that philosophers should refrain from answering this question. I guess that this will become clearer later in the book.)

Thanks for this comment and sorry to be slowing replying. On your first point: I don’t want to presume to speak for Jerry, but I don’t think he would necessarily reject the claim that a variety of different systems of social morality might be compatible with justice as fairness (JAF). To the extent he would reject this claim, I think it would be because Jerry doubts the more egalitarian elements of JAF are in fact justifiable to members of the public, but I don’t think he would reject the claim for the G.A. Cohen-type reason that the principles of distributive justice cannot be restricted to the basic structure of society.

On your second point: of course you are right that Rawls admits more indeterminacy in his later work, and so there’s a way (as you suggest) of narrowing the difference between Rawls and Jerry in this respect. I think we’ll see, however, that there is still a substantial difference between their views since: (a) I think Jerry believes the indeterminacy is greater than Rawls does, and (b) unlike Rawls, I don’t think Jerry believes that we as philosophers can sensibly declare that one member of the eligible set is the most reasonable or most eligible. Jerry would thus be, in this respect, unlike Rawls and I suppose more like Habermas, though I don’t know my Habermas well enough to say anything sensible about that comparison.

Again, these are just my hunches about Jerry’s views, and I guess we have to keep reading to see if any of what I’ve said constitutes a misinterpretation.